Pineapple Academy Services Agreement

This Services Agreement (“Agreement”) is between Pineapple Academy, Inc., a Delaware corporation, with an address at 209 W 19th Terrace Kansas City, Missouri 64108 (“PA”), and the customer identified on the Ordering Document (“Customer”).

1. DEFINITIONS

“Addendum” means any addendum to this Agreement containing additional terms governing Customer’s access, use, or receipt of the Service.

“Content” refers to all materials and elements associated with a Post, including but not limited to: (i) recorded audio files, including voice recordings, sound effects, music, and any other auditory elements used in the Post; (ii) written documents, articles and the like, including all information contained therein, used within a Post or shared in connection with a Post; (ii) subjects, ideas, and themes that are explored and discussed within the Post, the structural arrangement of the Post, including the sequence of segments; (iii) the duration of the Post, and the overall organization of content delivery; (iv) the distinctive manner in which the Post is produced and presented, including the tone, language, and presentation techniques employed; (v) any Materials used in the creation of the Post, including photography, scripts and transcripts of audio content; (vi) any visual components that accompany the Post, such as cover art, promotional images, and video content, if applicable; (vii) information that describes and categorizes the Post, including titles, descriptions, tags, and other relevant data; (viii) any materials used to market or promote the Post, including advertisements, social media posts, and press releases; and (ix) any interactive materials, including but not limited to quizzes or similar methods of measuring user’s knowledge, provided as a stand-alone Post or in connection with another Post.

“Content Creator” means a Customer who may Post Content on the Service, as identified and further set forth in an Ordering Document.

“Content Criteria” means the criteria set forth at pineappleacademy.com/content-criteria, as updated from time to time, or other criteria set forth in an Ordering Document.

“Content Reseller” means a Customer who may make Content available to end-user customers, as identified in an Ordering Document.

“Content Reseller Addendum” means the Addendum containing additional terms for Content Resellers.

“Credits” means a unit of Customer entitlement to access certain features and functionalities of the Service. They are further defined in section 5.6 of this Agreement.

“Fees” means fees set forth on the Ordering Document(s), as updated from time to time as set forth herein.

“Materials” means the visual interfaces, graphics, design, compilation, information, data, computer code (including source code and object code), products, software, services, and all other elements of the Service provided or made available by PA.

“Monthly Active User (MAU)” means a unique user who performs at least one Qualifying Activity within the applicable rolling thirty (30)-day period. The number of MAUs at any given time is calculated as the total number of distinct users who have performed at least one Qualifying Activity during the immediately preceding thirty (30) days, with each user counted no more than once during such period regardless of the number of Qualifying Activities performed.

“Monthly Active User (MAU) Allowance” means the total number of MAUs who may perform at least one Qualifying Activity within the applicable rolling thirty (30)-day period.

“Off-Platform Hosting” means hosting and distributing Content on one or more third-party services.

“Ordering Document” means a purchase order, quote, quotation, proposal or similar ordering document executed by the parties specifying, among other things, the fees payable by Customer to PA, the level of access to the Service that Customer will receive, and the Subscription Start Date, which references and is subject to this Services Agreement.

“Post”, “Posting” or “Posted” means to submit, upload, publish, or otherwise make available Content via the Service.

“Professional Services" means implementation, onboarding, training, consulting, content curation, content creation, or work performed on behalf of a customer related to administration or coordination around training and training programs.

“Qualifying Activity” means an intentional action performed by a unique, authenticated human user within the Platform that accesses, creates, modifies, submits, shares, or otherwise meaningfully interacts with customer data or a material Platform feature.

“Service” means any and all e-learning courses, content and all materials (e.g. visual interfaces, graphics, design, compilation, information, data, computer code (including source code and object code), products, software, services, and all other elements of the offerings) made available on the Platform.

“Standard Implementation” means the one-time on-boarding engagement designed to prepare the Customer for successful deployment of the Platform and to act as a self-sufficient administrator capable of managing day-to-day Platform operations following implementation.

“Standard Support” means normal product support and software defect resolution.

"Subscription" means a customer’s limited right to access and use the Platform during the applicable Subscription Term identified in an Ordering Document.

“Subscription Start Date” means the date Customer receives access to the Service as set forth in the Ordering Document.

“Subscription Term” means the length of time a customer has the right to access and use the Platform and shall be either one month or one year in length; and which will automatically renew for successive terms of the same duration unless otherwise terminated in accordance with the terms of the Customer Proposal. For further definition, Section 6.1.

“Third-Party Users” means users of the Service (or in the case of Off-Platform Hosting, a third-party service) who are not Customer’s employees, representatives, agents, or contractors.

“Usage Data” means information generated from the use of the Service, such as technical logs, duration of streams and number of impressions generated by the streams of Content, and data and learnings about Customer’s use of the Service, including use of the Service by Customer’s employees, representatives, agents, or contractors.

2. SERVICE

2.1. Permitted Use by Customers. During the Term (as defined in Section 6.1), subject to Customer’s complete and ongoing compliance with this Agreement, PA grants Customer a limited, worldwide, non-exclusive, non-transferable (except in compliance with Section 11.1), non-sublicensable right to access and use the Service, including any Materials provided by PA, subject to any MAU Allowance or tiers set forth on the applicable Ordering Document or invoice. PA reserves the right to monitor the number of MAUs associated with Customer to ensure compliance with any such user restrictions. Customer will not exceed the MAU Allowance set forth in the Ordering Document or invoice, unless Customer upgrades to the next tier with additional MAUs, purchases access for additional MAUs, or the parties agree otherwise in writing.

2.2. Service Delivery. Upon execution of the Ordering Document, Pineapple Academy shall use commercially reasonable efforts to provide the applicable Subscriptions and provide implementation, onboarding, customer success and technical support in accordance with the terms set out in the attached Exhibit A – Standard Implementation Package. Upon completion of the Standard Implementation Package, Customer may purchase Professional Services at PA’s then-current rates in accordance with the terms set out in the attached Exhibit B – Professional Services.

2.3. Content Creators. If Customer is identified as a Content Creator in the applicable Ordering Document then, in addition to the rights granted in Section 2.1, the Content Creator Addendum shall also apply to Customer and is hereby incorporated by reference.

2.4. Content Resellers. If Customer is identified as a Content Reseller in the applicable Ordering Document then, in addition to the rights granted in Section 2.1, the Customer and PA will mutually agree in writing on and execute terms governing Customer’s reselling of Content.

2.5. Service Resellers. If Customer is identified as a Service Reseller in the applicable Ordering Document then, in addition to the rights granted in Section 2.1, the Service Reseller Addendum shall also apply to Customer and is hereby incorporated by reference.

2.6. Customer’s Responsibilities. Only Customer and its employees, contractors, or other representatives that Customer allows to use the Service, using the mechanisms designated by PA (“Log-in Credentials”), may access, and use the Service. Customer must keep all Log-in Credentials confidential and not share them with anyone else. Customer has and will retain sole responsibility for: (i) all information, instructions, and materials provided by or on Customer’s behalf in connection with the Service, including Content; (ii) the security and use of Log-in Credentials; (iii) compliance with this Agreement by its employees, contractors, or other representatives; and (iv) all access to and use of the Service and Materials directly or indirectly by or through Log-in Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. If Customer requests information regarding its employees’, contractors’, or other representatives’ use of the Service from PA (e.g., records of Content viewed on the Service), Customer represents and warrants to PA that it has the legal authority to collect such information and has provided any and all legally required notices to, or obtained any and all legally required consent from, Customer’s employees, contractors, or other representatives regarding such collection.

2.7. Restrictions. Except as permitted in this Agreement or to the extent permitted under applicable law, Customer may not (and will not permit anyone else to): (i) provide access to, sublicense, reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (ii) use the Service to develop a similar or competing (in whole or in part) product, content or service; (iii) make any unauthorized modifications to the Service; (iv) make any representation or warranty about the Service not expressly authorized in this Agreement or by PA in writing; (v) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to the Service; (vi) remove or obscure any proprietary notices in the Service or the Content provided on the Service; (vii) interfere with or circumvent any feature of the Service, including any security or access control mechanism or conduct any security or vulnerability test of the Service; (viii) transmit any viruses or other harmful materials to the Service; (ix) take any action that risks harm to others or to the security, availability, or integrity of the Service; or (x) access or use the Service in a manner that violates any applicable law or regulation.

2.8. Corrective Action. If Customer becomes aware of any actual or threatened activity prohibited by this Agreement, Customer will immediately: (i) take all reasonable and lawful measures within its respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Service and destroying any data to which any of them have gained unauthorized access); and (ii) notify PA in writing of any such actual or threatened activity.

3. OWNERSHIP; PROPRIETARY RIGHTS

3.1. PA Materials and the Service. Except for Customer’s limited use rights granted in this Agreement, as between the parties, PA and its third-party licensors retain all intellectual property rights and other rights in the Service, Materials, Usage Data, and PA technology, templates, formats, and dashboards, including any modifications or improvements to these items made by PA.

3.2. Feedback. If Customer, or any of its users, provides PA with feedback or suggestions regarding the Content, Service or other PA offerings, Customer hereby assigns to PA and all of Customer’s rights, title and interest in and to such feedback or suggestions. For the avoidance of doubt, PA’s ownership under this Section 3.2 does not extend to Content Posted by Customer.

3.3. Usage Data. PA may use Usage Data for its own internal business purposes, including but not limited to: (i) track use of Service for billing purposes; (ii) provide support for Service; (iii) monitor the performance and stability of the Service; (iv) prevent or address technical issues with the Service; (v) to improve Service, its other products and services, and to develop new products and services; and (vi) for all other lawful business practices, such as analytics, benchmarking, and reports. Customer will not interfere with the collection of Usage Data. Customer agrees that PA’s processing of any “personal information” or “personal data” (as such or equivalent terms are defined by applicable law) associated with Usage Data will be governed by PA’s published Privacy Policy (available at https://pineappleacademy.com/en/privacy-policy), which PA may update from time to time.

4. MONITORING AND TAKING DOWN CONTENT

4.1. Monitoring Content. PA does not control and does not have any obligation to monitor or edit: (i) Content made available by Customer (including any Content Creator); (ii) any Content made available by third parties; or (iii) the use of the Service by its users. If at any time PA chooses to monitor Content, then PA still assumes no responsibility or liability for such Content or any loss or damage incurred as a result of the foregoing. PA may (at any time and without prior notice): (a) screen, remove, edit, or block any of Content that in PA’s sole judgment violates this Agreement, may violate the rights of third parties, or is otherwise objectionable; and (b) investigate any allegation that Content does not conform to the Content Criteria or this Agreement, and determine in PA’s sole discretion whether to remove such Content. Customer agrees to waive, and hereby does waive, any legal or equitable right or remedy Customer has or may have had against PA with respect to Content.

4.2. Take Down. PA reserves the right to take-down any Content from the Service and, in the case of Off-Platform Hosting, from any third party service if: (i) PA determines Content violates this Agreement, including the representations and warranties contained herein and any Addendum hereto (ii) this Agreement has been terminated pursuant to Section 6.2; or (iii) PA has suspended Customer’s access to the Service pursuant to Section 6.3. PA may block, filter, mute, remove or disable access to any of Content uploaded to or transmitted through the Service in its sole discretion without any liability to Customer or to any other users of the Service.

5. FEES, PAYMENTS AND CREDITS

5.1. Fees. Customer will pay PA all of the amounts set forth in the Ordering Document, in accordance with this Agreement and any applicable Addendum. PA will invoice Customer for the amounts owed to PA and unless stated otherwise in the applicable Ordering Document, Customer will make all payments to PA immediately upon Customer’s receipt of an invoice. Customer’s initial payment shall be a prepayment for the first month of Service and all invoices thereafter will be for prepayments in advance for the month immediately following the payment. Except as otherwise set forth in an applicable Ordering Document, if payment is not made as set forth in the Agreement, PA may assess Customer a late charge equal to 1.5% of the late payments per month until such amounts are paid in full.

5.2. Taxes. All amounts payable by Customer under this Agreement, including payable pursuant to any Addendum, are exclusive of taxes and similar assessments. PA may invoice Customer for, and Customer will pay, all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on PA’s income.

5.3. Fee Increases. PA may increase the Fees by providing written notice to Customer at least sixty (60) days prior to the effective date of such increase.

5.4. No Deductions or Setoffs. All amounts payable to PA under this Agreement will be paid by Customer to PA in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).

5.5. Free Trials. PA may make the Service (or certain features or functions thereof) available to Customer to try at Customer’s option at no additional charge as a free trial, beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar designation (“Free Trial”). PA reserves the right to monitor Customer’s use during a Free Trial for any abnormal, excessive, or non-evaluative usage patterns. Customer acknowledges and agrees that its use of Free Trial is subject to this Agreement, provided that notwithstanding anything to the contrary in this Agreement: (i) PA may terminate Customer’s access to Free Trial in its sole discretion at any time and for any reason, without liability or notice to Customer; and (ii) the Free Trial is provided “AS-IS” without any warranty and PA shall have no indemnification obligations nor liability of any type with respect to the Free Trial unless such exclusion is not enforceable under applicable law, in which case PA’s liability with respect to the Free Trial will not exceed $100.00.

5.6 Credits. Users designated as “administrators” of Customer will have access to prepaid tokens or credits that can be redeemed to access certain features and functionalities of the Service (“Credits”). For example, Credits may be used to the translate Content to a different language. Such Credits will be allotted (i) based on the subscription level purchased by Customer; and (ii) to Customer to use on a monthly, regardless of whether Credits are purchased on a monthly, annual or other basis. PA may notify Customer (email to suffice) when Customer’s usage exceeds, or is near to exceeding, Customer’s monthly allotment of Credits. Administer users of Customer may also view Customer’s Credit usage at any time via the dashboard on the PA Services. We may also offer Credits free of charge of part of a promotional program rather than for purchase (“Promo Credits”). Any Promo Credits will not be applied against any sales, use, gross receipts, or similar transaction-based taxes that may be applicable to Customer. Any Credits purchased or received during the then-current term will not rollover to the following term (e.g., any Credits purchased during the Initial Term will not rollover to any Renewal Terms). Notwithstanding the foregoing, Credits are subject to any expiration dates set by PA. Credits purchased will be priced subject to quantity at the time of purchase. For the avoidance of doubt, PA has the sole right and authority to determine Credit value and applicability to features and functionality of the PA Service. If Customer does not have enough Credits to access certain features or functionality, users will not be able to access such features or functionalities unless and until Customer is allotted more Credits, either by purchase, Promo Credits, or a new month (and Credit allotment) begins. Credits are not legal tender or currency, are not redeemable, refundable or exchangeable for any amount of money or monetary value (except were required by law), have no equivalent value in fiat currency, do not act as a substitute for fiat currency, and do not constitute or confer upon Customer any personal property right. All sales of Credits are final and not refundable (except were required by law). Credits are non-transferable and may be used only in connection with the PA Service. Any transfer, sale, gifts or trades of Credits is hereby prohibited, and any purported transfers, sales, gifts or trades of Credits will not be recognized by PA. Evidence of any attempt to use, sell, or transfer Credits in any manner constitutes a material breach of this Agreement and PA reserves all remedies available to it in connection with such breach. If Customer redeem Credits to access certain features or functionalities, but do not access such Content, Customer will not receive a refund for such redeemed Credits. PA may review Customer’s (and its users’) use of Credits and the correlating consumption of features and functionalities to ensure Customer’s consumption of Credits aligns with the amount of Credits purchased by Customer. If Customer continually attempts to use Credits in excess of the Credits purchased by Customer, PA may require Customer to purchase additional Credits, or to upgrade to the next subscription tier to better align with Customer’s use of the PA Service. If Customer does not upgrade to the next subscription tier or otherwise purchase additional Credits after Customer routinely or egregiously exceeds its monthly Credit allotment, PA may terminate this Agreement immediately upon notice to Customer, in addition to taking all other rights and remedies afforded to PA.

6. TERM AND TERMINATION

6.1. Term. This Agreement shall commence as of the Subscription Start Date and shall continue for the period specified in the Ordering Document, or for one (1) year as of the first date Customer accessed the Service if no Subscription Start Date and period was specified in the Ordering Document (the “Initial Term”) and will automatically renew for terms of the same duration, unless either party provides a written notice of nonrenewal at least (i) ninety (90) days, if the Initial Term is twelve (12) months, or (ii) thirty (30) days, if the Initial Term was less than twelve (12) months, in either case, prior to the end of the then-current term (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless earlier terminated.

6.2. Termination. Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party (i) materially breaches this Agreement and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or (ii) either (a) becomes insolvent or admits its inability to pay its debts generally as they become due; (b) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty-five (45) days after filing; (c) is dissolved or liquidated or takes any corporate action for such purpose; (d) makes a general assignment for the benefit of creditors; or (e) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

6.3. Suspension. PA may immediately suspend Customer’s (or any of its users’) access to any or all of the features of the Service (including access to Materials) and remove any of Customer’s Posted Content from the Service according to Section 4.2 if: (i) Customer breaches Section 2.7; (ii) Customer’s fees are 30 days or more overdue; (iii) changes to applicable laws or new laws require that PA suspend the Service or otherwise may impose additional liability on the part of PA; or (iv) Customer’s actions risk harm to any of PA’s other customers or the security, availability, or integrity of the Service. Where practicable, PA will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, PA will restore Customer’s access to the Service.

6.4. Effects of Termination. Upon the effective date of expiration or termination of this Agreement, (i) Customer’s license rights will terminate, and Customer must immediately cease using the Service; (ii) Customer will no longer be authorized to access the Service or Content; and (iii) all amounts owed, including Fees will become due and payable.

6.5. Survival. All Customer liabilities incurred prior to termination and Sections 1, 2.6, 3, 4.2, 5.1, 6.4, 6.5, 7, 8.2, 9, 10, and 11 of this Agreement any sections specified in any applicable Addendum to this Agreement will survive any termination or expiration of this Agreement.

7. CONFIDENTIALITY.

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose business, technical or financial information relating to the Disclosing Party’s business under this Agreement (“Confidential Information”). The Receiving Party will (i) not access or use Confidential Information other than in connection with exercise of its rights or perform its obligations under and in accordance with this Agreement; (ii) hold the Confidential Information in strict confidence and protect it from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; (iii) not disclose or permit access to Confidential Information other than to its employees who: (a) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (b) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 7; and (c) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7. The foregoing shall not apply with respect to any information which the Receiving Party can document: (w) was or becomes generally available to the public through no fault of the Receiving Party; (x) was rightfully in the Receiving Party’s possession (or known by the Receiving Party) without any confidentiality obligations prior to receipt from the Disclosing Party; (y) was rightfully disclosed to it without restriction by a third party; or (z) was developed independently by the Receiving Party without reference to Confidential Information of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under this Agreement; provided, however, that the Receiving Party will stipulate to any orders necessary to protect such information from public disclosure. For the avoidance of doubt, performance data gathered during delivery of Content (e.g., number of impressions, interactions, etc.) made available to Customer by PA will be deemed PA’s Confidential Information.

8. REPRESENTATIONS AND WARRANTIES

8.1. Mutual Warranties. Each party represents and warrants to the other that: (i) this Agreement has been duly accepted and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with such party’s acceptance, delivery, or performance of this Agreement; (iii) the acceptance, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound; (iv) it will at all times comply with all laws, statutes, ordinances, and regulations applicable to its rights and obligations under this Agreement; and (v) Customer either owns or has all rights, licenses, consents and releases necessary to provide or make available Content to PA or the Service.

8.2. DISCLAIMER OF WARRANTIES

8.2.1. THE SERVICE AND ANY MATERIALS AND CONTENT, WHETHER AVAILABLE THROUGH THE SERVICE OR A THIRD-PARTY SERVICE, ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, THE CONTENT, AND ANY MATERIALS INCLUDING: (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PA DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH (OR POSTED TO) THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND PA DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

8.2.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM THE SERVICE, THE CONTENT, ANY MATERIALS AVAILABLE THROUGH THE SERVICE OR FROM CONTENT AVAILABLE THROUGH A THIRD-PARTY SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE PA ENTITIES OR REGARDING THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER USES ANY PORTION OF THE SERVICE AT CUSTOMER’S OWN DISCRETION AND RISK, AND THAT PA IS NOT RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S PROPERTY (INCLUDING CUSTOMER’S COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING CONTENT POSTED TO THE SERVICE.

8.2.3. PA MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT ANY THIRD-PARTY SERVICES USED IN CONNECTION WITH OFF-PLATFORM HOSTING AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO ANY THIRD-PARTY SERVICES USED IN CONNECTION WITH OFF-PLATFORM HOSTING, INCLUDING: (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PA IS NOT RESPONSIBLE FOR ANY USE BY CUSTOMER OF THIRD-PARTY SERVICES IN CONNECTION WITH OFF-PLATFORM HOSTING.

8.2.4. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 8.2 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. PA does not disclaim any warranty or other right that PA is prohibited from disclaiming under applicable law.

9. INDEMNITY

9.1. Indemnification by Customer. To the fullest extent permitted by law, Customer is responsible for Customer’s use of the Service, and Customer will indemnify, defend, and hold harmless PA, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “PA Entities”) from and against every claim brought by a third party (a “Claim”), and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs (“Losses”), arising out of or connected with: (i) Customer’s unauthorized use of, or misuse of, the Service; (ii) Customer’s breach of its representations or warranties, or any applicable laws or regulations; (iii) any alleged or actual violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right, by Customer; (iv) any dispute or issue between Customer and any third party; and (v) if applicable, Customer’s material breach of any Addendum. PA reserves the right, at PA’s expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer (without limiting Customer’s indemnification obligations with respect to that matter), and in that case, Customer agrees to cooperate with PA’s defense of those claims.

9.2. Indemnification by PA. To the fullest extent permitted by law, PA will defend and indemnify Customer, Customer’s affiliates and Customer’s respective shareholders, directors, managers, members, officers, employees, consultants, and agents from and against every Claim, and any Losses, arising out of or connected with a claim that the Services infringe a third party’s intellectual property rights. Customer may, at Customer’s expense, assume the exclusive defense and control of any matter otherwise subject to indemnification by PA (without limiting PA’s indemnification obligations with respect to that matter), and in that case, PA agrees to cooperate with Customer’s defense of those claims. PA’s obligations in this Section 9 do not apply: (a) to infringement or misappropriation arising from or related to Content; (b) to unauthorized use of Service; or (c) if Customer settles or makes any admissions about a claim without PA’s prior consent.

9.3. Mitigation. In response to an actual or potential infringement or misappropriation claim or otherwise relating to violation of intellectual property rights, if required by settlement or injunction or as PA determines necessary to avoid material liability, PA may at its option: (i) procure rights for Customer’s continued use of the Service; (ii) replace or modify the allegedly infringing portion of the Service to avoid infringement or misappropriation without reducing the Service’s overall functionality; or (iii) terminate this Agreement and refund to Customer any pre-paid, unused fees for the terminated portion of the Term.

9.4. Exclusive Remedy. This Section 9 sets out Customer’s exclusive remedy and PA’s entire liability regarding infringement or misappropriation of third-party intellectual property rights.

10. LIMITATION OF LIABILITY

10.1. EXCEPT FOR (I) EITHER PARTY’S BREACH OF SECTION 7, EITHER PARTY’S OBLIGATIONS UNDER SECTION 9 OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (II) CUSTOMER’S BREACH OF SECTION 2.6 (THE “EXCLUDED CLAIMS”), TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

10.2. EXCEPT FOR THE EXCLUDED CLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE GREATER OF (I) THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER TO PA IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR (II) ONE THOUSAND DOLLARS ($1,000). THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

11. MISCELLANEOUS

11.1. General Terms. Customer may not assign or transfer this Agreement or Customer’s rights under this Agreement, in whole or in part, by operation of law or otherwise, without PA’s prior written consent. PA may assign this Agreement and all rights granted under this Agreement, including with respect to any Content, at any time without notice to Customer or Customer’s consent. The failure to require performance of any provision will not affect PA’s right to require performance at any other time after that, nor will a waiver by PA of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in this Agreement is for convenience only and will not have any impact on the interpretation of any provision. Throughout this Agreement the use of the word “including” means “including but not limited to.” If any part of this Agreement is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

11.2. Relationship. The relationship between the parties hereto shall be that of independent contractors. Neither party is and neither party shall represent itself to be the agent, employee, franchise, joint venturer, officer or partner of the other party. Nothing herein shall be construed to place the parties in the relationship of partners or joint venturers, and neither party shall have the power to obligate or bind the other party in any manner whatsoever.

11.3. Force Majeure. Excluding payment obligations, neither party will be liable for delay or default in the performance of its respective obligations under this Agreement if such delay or default is caused by conditions beyond such party’s reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, labor disputes, pandemic or public health emergency, or material modification or shutdown of third party services that PA uses to provide the Service through no fault of PA (“Force Majeure Event”).

11.4. Amendments; Modifications. No modification or amendment to this Agreement will be binding upon PA unless they are agreed in a written instrument signed by a duly authorized representative of PA or as agreed upon in an Ordering Document that has been accepted by PA. PA may, in its sole discretion, amend this Agreement at any time by posting a revised version on the Services. Any revisions to this Agreement will take effect on the “last updated” date above. Customer is responsible for regularly reviewing this Agreement for the most updated version. Customer is automatically accepting and agreeing to the most-recent version of the Agreement whenever you log into the Services and the continuing visit, access, registration with, subscription to, or use of any of the forgoing reaffirms Customer’s acceptance and agreement in each instance.

11.5. Subcontractors. PA may use subcontractors and permit them to exercise PA’s rights and obligations hereunder, but PA remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.

11.6. Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by email, certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the Ordering Document and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given the next business day following the date of email, two business days following the date of mailing, or one business day following delivery to a courier.

11.7. Governing Law. This Agreement is governed by the laws of the State of Missouri without regard to conflict of law principles. Customer agrees any action at law or in equity arising out of or relating to this Agreement shall be filed only in the state and federal courts residing in Jackson County, Missouri, and Customer hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts over any suit, action, or proceeding arising out of or relating to this Agreement. PA makes no representation that Service are is appropriate or available for use in locations outside of the United States of America.

11.8. Counterparts. The Ordering Document may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. The Proposal may also be executed and delivered electronically and such execution and delivery will have the same force and effect of an original document with original signatures.

11.9. Entire Agreement; Order of Precedence. This Agreement, including any Ordering Documents, one or more Addendums, attachments and exhibits, is the final and complete expression of the agreement between these parties. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. In the event of any conflicting terms between the body of this Services Agreement or an Ordering Document, the Ordering Document shall control.